Saturday, August 8, 2009

The Assisted Suicide Debate Continues

In its very last judgment the House of Lords again wrestled with the question of assisted suicide. The Court had earlier determined (in common with Canada) that the bar on assisted suicide was lawful but now had to deal with an ancillary question -- that is whether or not the Director of Public Prosecutions (the head of the English prosecution service) had to give some guidance as to when it would exercise its discretion to allow a prosecution for assisted suicide.

The case concerned a woman suffering from a progressive disease which in time would render her life unbearable. When that time comes she wants to be taken to Switzerland where assisted suicide is lawful to end her own suffering. Her husband is willing to take her. There is a nice legal question as to whether taking somebody to another country where you will assist them commit suicide is even a crime, but the woman and her husband don't want to chance that. Instead they wanted an answer to the question, "is the DPP going to prosecute the husband at all?" At the very least they wanted to know what criteria the Director proposes to apply in making that decision.

The House of Lords, in a thoughtful judgment, ordered that the Director issue a policy outlining the criteria that would be considered in deciding whether or not to prosecute a person for assiting a suicide. The discussion covers a great deal of the assisted suicide debate (including the Rodriguez case) and highlights the continued difficulty that this whole topic raises. In a macabre moment Lord Phillips of Worth Matravers cites an old English decision from the early 1800's (R. v. Burgess) on the problems posed by the crime of attempting suicide:

“We are all of opinion that the jurisdiction of the Quarter Sessions is not taken away by the 24 & 25 Vict. c. 100, and that attempting to commit suicide is not attempting to commit murder within that statute. If it were, it would follow that any one attempting to commit suicide by wounding himself must be indicted for the offence of wounding with intent to commit murder, which until very recently was punishable with death.”

This question will sooner or later have to be dealt with by Parliament (both here and in the United Kingdom) but for now at least the House of Lords has tempered discretion with reason in this debate.

Perhaps this was not a bad gesture for the Lords own last act.

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A Revival and an End

After an absence of several months I come back to my blog -- and so a revival. Now to comment on an end.

For several hundred years the House of Lords has stood (in the guise of its Judicial
Committee) as the highest court in the United Kingdom. Its alter ego, the Judicial Committee of the Privy Council equally stood as the de facto highest court in the British Empire and Commonwealth (although slowly but surely its reach has faded away in favour of various domestic high courts).

Despite the diminishment of its formal reach over the years, the House of Lords practically had pride of place and a form of precedence throughout the common law world as the highest court. The United States Supreme Court has always been parochial in its outlook and in its technical and arcane language (and debates) has never fired the judicial imagination of other countries in the way that the House of Lords has. None of the domestic highest courts throughout the remains of the British Empire has ever come close to the level of respect given the House of Lords.

In recent years this central place in the common law has faded. The legal system of the United Kingdom (like all legal systems) has moved away from its focus on the common law. It is now much more preoccupied with the interpretation of intricate British statutes or increasingly focused on the niceties of European Union law. The judgments (or speeches as they are more properly called) of the Law Lords that are read by law students in Canada are older now. But still the recent judgments of the House of Lords (and particularly Lord Bingham of Cornhill -- likely the greatest jurist of this generation in the English speaking world) on the topics of the war against terror and the rights of persons facing persecution are striking their clarity of thought, speech and common sense.

On July 30, 2009, the House of Lords carried out its last judicial function. It rendered a number of judgments (one of which concerned a long delayed claim for royalties for the song "A Whiter Shade of Pale" and another concerning assisted suicide). The the Lords made few quick remarks and then adjourned for the last time. In rather elegant, form the last substantive remarks of Lord Hope of Craighead concerned the inscription beneath the clock in the House of Lords chamber (which in Latin says -- Everything has its time). It can be seen at a convenient recording maintained at the House of Lords website (skip ahead a bit for the sound).

On October 1, 2009, the new Supreme Court of the United Kingdom will become the highest court in the United Kingdom. While the composition of this Court will remain the same as the current judicial committee (sadly Lord Bingham of Cornhill has retired and will not sit as the first President), I doubt it will ever have the mystique or authority outside of the United Kingdom that the House of Lords had. While this perhaps is an inevitable evolution in death of the Empire and the increased autonomy of its former colonies, it still perhaps should give some pause to mark the passing of what was once an institution that served to unite the common law.

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